Before the Court is the motion of Defendants, brought pursuant to
Fed.R.Civ.P. 12(b)(1) and (6), to dismiss the complaint.*fn1 For the
reasons set forth below, Defendants' motion to dismiss the Complaint is
denied as against Superintendent Greiner, K.A. Greiner, Dr. Halko, Dr.
Maw, Ms. Figueroa, and Mr. Colon, and is granted as to Defendants
Williams, Von Hagen, Mr. Obrowiski and Michael McGinnis.

Background

The facts as set forth below are taken from Plaintiff's complaint. On
May 3, 1997, Plaintiff, an inmate of Sing Sing Correctional Facility, was
injured during a basketball game. Complaint, ¶ 13. Plaintiff was
examined by a nurse in the prison emergency room where he was given
temporary medical pass for a cane, showers, a medical keeplock and
allowed in-cell meals. Id., ¶ 15. Plaintiff was also given an
appointment to see staff physicians. Id., ¶ 16. On May 5, 1997,
Plaintiff was examined by Defendant Dr. Halko, who diagnosed Plaintiff as
suffering from a bruised tendon. Id., ¶¶ 17-18. After continued
complaints, he was examined by Defendant Dr. Maw on May 12, 1997. Id.,
¶ 19. Plaintiff complained to Dr. Maw that he experienced chronic and
substantial pain and swelling, but Dr. Maw did not refer Plaintiff to a
specialist and did not renew Plaintiff's medical pass. Id., ¶ 20.
Dr. Maw insisted that Plaintiff was well enough to return to his work
assignment. Id. Plaintiff then filed a grievance on May 13, 1997,
claiming that he had not received adequate medical care. Id., ¶ 21.
In addition, Plaintiff wrote a letter to Defendant Superintendent
Greiner, complaining that he had not received adequate medical care for
his injury. Id., ¶ 22.

Defendant Mr. Colon responded to Plaintiff by promising to refer him to
Dr. Halko for a new medical pass and that Plaintiff would be given an MRI
exam. Id., ¶¶ 23-24. These appointments did not occur. Id., ¶
25. Defendant Superintendent Greiner responded to Plaintiff's complaint
about his medical care by informing Plaintiff that he would be reexamined
by Dr. Maw. Id., ¶ 27. This appointment also never occurred. Id.,
¶ 28. On July 2, 1997, Plaintiff again injured his ankle when he
slipped on a staircase while he was performing his work assignment in the
prison cafeteria. Id., ¶ 29. In the emergency room, Defendant
Figueroa saw Plaintiff and accused Plaintiff of unlawfully possessing the
cane he had been given at the time of the first injury. Id., ¶ 31.
Defendant Figueroa did not examine him or review his file, and sent him
back to his cell without treatment. Id., ¶¶ 32-33.

Subsequently, Plaintiff wrote additional letters to Defendant Nurse
Administrator K.A. Greiner, the Inmate Grievance Resolution Committee,
the Assistant Commissioner for Medical Services and the Commissioner of
the New York State Department of Health, and also filed an appeal to the
grievance committee. Id., ¶¶ 38-39. Plaintiff also asked Defendants
Figueroa and Williams to place him on a less stringent work assignment.
They refused to do so. Id., ¶ 41.

Defendant KA. Greiner responded to Plaintiff's inquiry by stating that
she would await the outcome of the grievance process. Id., ¶¶ 43-44.
In October 1997, Plaintiff wrote a second letter to Defendant
Superintendent Greiner, complaining that he still had not received
adequate medical care and that he had not received a response to the
appeal filed in July 1997 from the adverse grievance committee decision.
Id., ¶ 45. In November 1997, Defendant Superintendent Greiner
informed Plaintiff that the appeal had been denied, stating that the
medical department had acted appropriately and that Plaintiff had been
abusing the system. Id., ¶¶ 47, 50-51.

While incarcerated at the Green Meadow Correctional Facility, Plaintiff
requested his medical records in order to prepare for this lawsuit. Id.,
¶ 56. When Plaintiff examined his medical records on September 10,
1999, he discovered that some of the records were missing. Id., ¶¶
57-58. Defendant Nurse Von Hagen, who was supervising Plaintiff's review
of his medical records, informed Plaintiff that she would contact the
prisons where Plaintiff previously had been incarcerated and that she
would get back to Plaintiff concerning the missing medical records. Id.,
¶¶ 57, 59-60. Defendant Von Hagen did not follow up and did not
respond to Plaintiff's subsequent inquiries concerning the whereabouts of
the missing records. Id., ¶ 61. In September 1999, Plaintiff wrote
to Defendant Nurse Administrator Mr. Obrowiski concerning the missing
medical records; Mr. Obrowiski also did not respond to Plaintiff's
inquiry. Id., ¶ 62. Subsequently, Plaintiff filed a grievance
requesting that the medical records be located and wrote Mr. Obrowiski a
second time. Id., ¶¶ 63-64. Neither the grievance committee or Mr.
Obrowiski responded. Id., ¶¶ 64-65. Subsequently, Plaintiff
discovered that his grievance complaint had not been received, so
Plaintiff submitted another complaint seeking assistance in locating the
missing medical records. Id., ¶¶ 66-67. Plaintiff was instructed to
contact the correctional facilities directly to request the missing
records. Id., ¶ 68. Plaintiff appealed this decision to Defendant
McGinnis, who denied the appeal. Id., ¶ 69.

DISCUSSION

A complaint should not be dismissed under Rule 12(b)(6) unless it
"`appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim
which would entitle him to relief.'" Allen v. WestPoint-Pepperell, Inc.,
945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41,
45-46(1957). The factual allegations set forth in the complaint are
accepted as true and all reasonable inferences are drawn in favor of the
plaintiff. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The
issue before the Court "`is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support
the claims.'" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d
Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236(1974)). In
addition, allegations of a pro se complainant are held to "less stringent
standards than formal pleadings drafted by lawyers." Haines v. Kerner,
404 U.S. 519, 520(1972).

The Eighth Amendment prohibits the infliction of "cruel and unusual
punishment" on persons convicted of crimes. U.S. Const. amend. VIII. In
order to establish an Eighth Amendment claim based upon failure to
provide adequate medical care, a prisoner must prove "deliberate
indifference to [his] serious medical needs." Estelle v. Gamble,
429 U.S. 97, 106 (1976). Establishing deliberate indifference includes
both a subjective and an objective element. Farmer v. Brennan,
511 U.S. 825, 834(1994); Chance v. ...

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